Court in Hong Kong Invalidates Anti-Sodomy Law From British Era

Published: August 25, 2005

A judge struck down Hong Kong's anti-sodomy laws on Wednesday, siding with a 20-year-old homosexual man who challenged the measures, including one that demanded a life sentence for gay sex when one or both men are younger than 21.

As he left the High Court, the gay man, William Roy Leung, said his legal victory meant ''I can finally have a loving relationship without being scared of jail for life imprisonment.''

The judge ruled the laws ''discriminate on the basis of sexual orientation'' and ''are demeaning of gay men who are, through the legislation, stereotyped as deviant.''

In the ruling the judge, Michael Hartmann, also said the laws were a ''grave and arbitrary interference with the right of gay men to self-autonomy in the most intimate aspects of their private lives.''

The laws prohibited ''gross indecency'' or sexual intimacy between men if one or both are under 21. But heterosexual and lesbian couples who are 16 or older can legally have such relations.

Under the laws, gay men who engage in consensual sodomy when either is under 21 faced life imprisonment.

''It is a landmark case and a long overdue judgment,'' said Roddy Shaw, a gay activist. ''It's the first time that sexual orientation has been upheld as a protected ground against discrimination in a Hong Kong court.''

Mr. Shaw said that the police had arrested 65 men for breaking the anti-sodomy laws in the past five years, and that 26 had been convicted. The laws have been on the books for 14 years, well before the former British colony returned to Chinese rule in 1997.

Some Christian groups condemned Wednesday's decision, saying it would encourage more young people to try sodomy.

Homosexuals are treated differently throughout Asia. The Philippines and Thailand tend to be more tolerant, while ethnic Chinese cultures like Hong Kong are less open.

The European Union charter of rights, adopted in 2000, protects against discrimination, including on the basis of sexual orientation, in the 25 members. Spain, the Netherlands and Belgium also legally recognize same-sex marriage.

In June 2003, the United States Supreme Court ruled that anti-sodomy laws were unconstitutional, striking down a Texas law that made homosexual sex a crime. The ruling invalidated sodomy laws in 13 states.

Hong Kong's government, which said Wednesday that it was reviewing the decision, can appeal Wednesday's ruling. But Law Yuk-kai of the Hong Kong Human Rights Monitor said the decision meant the government no longer had a legal basis for enforcing the law.

''Once a judge strikes down a law as unconstitutional, the government has lost its legal authority to enforce the law, even though the law is still on the books,'' he said.

Hong Kong is debating whether a law prohibiting discrimination against homosexuals is needed. There have been heated arguments on call-in radio shows, and religious groups have been taking out newspaper advertisements urging the public not to support such legislation.

The government has so far provided few details about what an antidiscrimination bill would say, but Mr. Shaw said Wednesday's ruling would help advance the bill.